HUNTINGTON DEVELOPMENT & GAS CO. v. STEWART, 44 F.2d 119

NORTHCOTT, Circuit Judge. This is an action of ejectment instituted by appellant, a Delaware corporation, in the District Court of the United States for the Southern District of West Virginia, against appellee and four other defendants. Trial was had as to Allie Stewart, appellee, alone, and was as to the mineral estate underlying a 31-acre tract of land claimed by her, situate in Lincoln county, W. Va. No claim was made by the appellant as to the surface. The appellee, who will be referred to as the defendant, claimed the land in fee simple.

The plaintiff and defendant have a common source for their respective claims of title, the plaintiff, under a disclaimer, in effect, a quitclaim deed, from Samuel A. Bias and J. A. Bias, disclaiming ownership of all the coal, iron, oil, gas, and other minerals in or under a tract of 225 acres, which tract, it was claimed by the plaintiff, included the 31-acre tract in controversy. This disclaimer of the Biases was dated the 23d day of September, 1889. Samuel A. and J. A.

Bias, in November, 1903, deeded 'a 96-aere tract, including the 31 acres in question, to Rosa Stewart, who, together with her husband, deeded the 31 acres to the defendant, Allie Stewart, on March 1, 1906. There are no qualifications, as to the title, in either of the deeds to the Stewarts, and both deeds are apparently for the fee-simple title.

The disclaimer or quitclaim deed from the Biases to the plaintiff was a result of a compromise of an action in ejectment against the Biases and a number of others, involving parts of a tract of 100,000 acres, claimed under certain ancient grants issued by the state of Virginia to General Samuel Smith' -toward the close of the eighteenth century. The defendant moved on the 31 acres in 1906, and inclosed it by a fence, and she or some of her family have resided on it ever since.

No coal has ever been opened on this land, and no development for oil or gas or any other mineral attempted prior to September, 1928, when plaintiff-attempted to locate a gas well on same, and was stopped by the defendant. In 1909 the courthouse of Lincoln county was burned, and all of the county records destroyed. On the 28th of March, 1911, the disclaimer from the Biases was presented to W. C.

Holstein, clerk of the county court of Lincoln county, to be again recorded, and was admitted to record anew-The document presented in 1911 bore upon its back the following endorsement: “Disclaimer Samuel Bias and Jerusha A., his wife, 225 acres, Trace Creek, Recorded in Release Docket-, page 353, Lincoln County, W. Va., H. Hager, Clerk, Ex. No. 14.” The deed of the defendant from Rosa Stewart was admitted for recordation anew on November 10, 1910, and the deed showed that it had been first recorded in the county clerk’s office on June Í2, 1907. The record shows that H.

Hager was county clerk of Lincoln county from 1887 .to 1895, and that he was not county clerk of the county after the year 1895. The land was charged on the land books of Lincoln county to the defendant in fee during the entire time defendant has owned it, and she has paid taxes thereon for entire time, except'for year 1929. Upon the trial the learned judge below directed a verdict for the defendant on ground of adverse possession, for more than ten years under color of title, from which action this appeal was taken.

That the plaintiff by its evidence located the 31-aere tract within the boundary of the 225-acre tract, the mineral rights of which were conveyed by the disclaimer, seems clear from the record. On this point, the judge below in bis charge to the jury said: “The .plaintiff has introduced evidence tending to show the location of their land and that that location includes the land in controversy. There has been no real dispute by the defendant of that testimony.

The plaintiff has shown a title under circumstances, which I believe, would probably permit the same to go to a jury.” It is well settled in West Virginia that there can be a severance of the mineral estate, from the surface, in a tract of land, and two separate and distinct estates therein are thereby created, and that such severance makes them distinct corporate hereditaments. Where such severance has taken place, possession of the surface does not constitute possession of the underlying minerals, and is not hostile to the title of the mineral owner. Wallace v. Elm Grove Coal Co., 58 W. Va. 449, 52 S.

E. 485, 6 Ann. Cas. 140; Kiser v. McLean, 67 W. Va. 294, 67 S. E. 725, 140 Am. St. Rep. 948. This court has recognized this rule. Vance v. Clark (C. C. A.) 252 F. 495; Miller v. Estabrook (C. C. A.) 273 F. 143, 149. The West Virginia statute with reference to adverse possession is

section 1,

chapter 104, of the Code of 1923, and reads as follows : “1. Recovery of Lands. — No person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.” In the case of Miller v.

Estabrook, supra, this court passed upon' many of the questions involved in the instant case, and there laid down the rule, clearly sustained by authority, that those who purchased and held what purported to be the fee, under one who had severed the surface and minerals, would not be bound by such severance, “unless they had actual or constructive notice.” The court went on to state that the vital question then was whether there was such a recordation of the deed as to charge those deriving title from him who had severed the surface and minerals with constructive notice of the severance.

In the event of such notice, the adverse possession of the surface would be therefore ineffectual to defeat the title of those who claim the mineral estate. As we see it, a precisely similar situation exists here; the question being whether or not there was such recordation of the disclaimer or quitclaim deed from the Biases as would put the defendant, Allie Stewart, upon constructive notice of the severance of the minerals from the surface. As to whether or not the defendant had actual notice of such severance and of the claim of the plaintiff, the record is not clear.

It is true that the defendant testified that she did not leam that the plaintiff was asserting any claim to the minerals under her land until September, 1928, but she did not testify that she did not know of the severance of the mineral estate by the Biases before her purchase of the 31-acre tract, and this she certainly should have done, if such were the fact. Her testimony that she did not know of the plaintiff’s claim is not broad enough to include the fact that she did not know of the severance.

On the question of her constructive notice, that is, the question of whether or not the disclaimer or quitclaim deed of the Biases was recorded in the county clerk’s office of Lincoln county prior to her purchase in 1906, we are of the opinion that the testimony, which must on this motion be viewed in the light most favorable to the plaintiff, shows the prior recordation of the disclaimer. At least it is shown with sufficient proof to allow the ease to go to the jury on that point. This court has held in Vance v. Clark, supra, and in Dingess v.

Gas Co., 271 F. 864, that title papers similar to those involved in this case were sufficient for plaintiff to recover, and has also held in Miller v. Estabrook, supra, and again in Woodall v. Estabrook et al., 273 F. 152, that disclaimer or mineral deeds, similar to the one involved here, passed title to the mineral estate, and were properly recorded, when recorded, as was the one here involved, in the “Release Docket.” If H. Hager recorded the “Disclaimer” deed, as his notation shows that he did, it must have been prior to the year .1895, for that was the last year in which he was clerk.

It was therefore prior to defendant’s purchase of the land in 1906, and thus she had constructive notice of the severance. Supporting the notation of H. Hager, as clerk, is the evidence of W. R. Talbott, whose testimony was perpetuated under the West Virginia statute, to the effect that, in searching the records of Lincoln county, prior to the fire, he found the Biases’ disclaimer deed recorded. At the time of the perpetuation of the Talbott testimony, the defendant was represented, by counsel, and must therefore have known of the severance of the minerals from the surface-estate, by the Biases, long before 1928.

The perpetuation of the Talbott testimony, however, took place more than ton years after the purchase and possession of the 31-aere tract by the defendant, and could not affect her adverse possession had she not had constructive notiee through the recordation of the disclaimer or quitclaim deed.

Some contention is made as to flaws in the plaintiff’s title running back to the commonwealth of Virginia, but, where both plaintiff and defendant derive title from a common source, it is sufficient for the plaintiff to prove such common source. “In actions of ejectment where both plaintiff and defendant derive title from the same third person, the rule is well settled that it is prima facie sufficient for plaintiff to prove such common derivation of title without proving that such third person had title to the land in controversy.” Laidley v. Land Co., 30 W. Va. 505, 4 S. E. 705.

The fact that the original quitclaim deed was not offered in evidence has given us some concern. Should the ease be tried again, the original deed should be offered or some explanation given as to why it is not done. Some other points were raised in the ease, but, in view of our conclusion as to the constructive 'notice to the defendant, it is not necessary to discuss them here. There was at least sufficient evidence to take the ease to the jury, and the judge below was in error in directing a verdict for the defendant. Reversed and remanded for a new trial. Reversed.